Legislators vote to require state review of rivers, other water bodies

North Dakota lawmakers voted Tuesday to require the state engineer to review the ownership of rivers and streams in the state, legislation introduced late in the session that two officials say will require significant state resources.

House and Senate members voted in support of House Bill 1202, a bill that requires a state review of “navigable waters,” or waterways that were used for commerce when North Dakota became a state.

Determining that a water body was used for commerce or was capable of being used for commerce at statehood has significance for the ownership of the waterway.

For navigable water bodies, such as the Missouri River, the state owns property up to the ordinary high water mark of the river, including minerals submerged under the water.

The state cannot claim ownership of water bodies that were not navigable for commerce at the time of statehood. For example, a court ruling determined the state did not prove the Little Missouri River was navigable at the time of statehood. In that case, private property owners next to the water have claim to the center of the river.

Courts have the final say about whether a waterway was navigable at statehood. The Missouri River, the James River, Devils Lake, Painted Woods Lake and Sweetwater Lake all have been determined to be navigable by courts.

In addition, the North Dakota state engineer has asserted that 11 water bodies were navigable at the time of statehood.

Navigable water bodies

These 11 water bodies have been determined to be navigable by the state engineer:

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Unruh said the issue was discussed throughout the session, including during hearings for a different bill that relates to the ordinary high water mark of the Missouri River.

The financial impact of the bill is unclear. Erbele said his office would need to dedicate significant staff time or hire a consultant to do the work.

If the state engineer does not begin a review in the 2019-20 interim, previous determinations of navigability would be vacated, according to the bill.

If there is litigation, a fiscal note prepared by Land Commissioner Jodi Smith in consultation with the state engineer estimates that lawsuits would cost the state $200,000 in legal costs per lawsuit per water body.

If the navigable rivers review affects major water projects, such as the Red River Valley Water Supply Project, the impact to the state to acquire easements could be as much as $20 million, according to the fiscal note.